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Sri Emberumanar Jeer Swamigal Vs. the Board of Commissioners for Hindu Religious Endowments and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in166Ind.Cas.256; (1936)71MLJ588
AppellantSri Emberumanar Jeer Swamigal
RespondentThe Board of Commissioners for Hindu Religious Endowments and ors.
Cases ReferredStriman Sadagopa v. Kristna Tatachariyar
Excerpt:
.....lie in respect of administrative acts. 6. indeed the rule that civil courts cannot take cognizance of claims to, mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met with failure. it is not pretended that any particular person like the petitioner could enforce a claim to get theertham or other honours in a particular order of precedence by filing a suit against the trustee or any one else. the preliminary objection is a sound one, and the application must fail on that ground and it is not necessary to go into the question whether the procedure adopted by the board in reviewing its previous order was wrong or whether two commissioners were entitled to review or modify an order passed by three of them......application for reviewing the order of 1927 three commissioners constituting what is called a full board passed an order dismissing it and declining to review the order passed in 1927. thereupon an application was made for a review of the order dismissing that application and it was on such an application for review that the present order dated 15th may, 1935, was passed and it is this order that is sought to be quashed in these proceedings. it would appear that sri emberumanar jeer, the petitioner in this court, had no objection to the 9th theertham and 9th place being given to the petitioner before the board. the memorandum filed by him before the board was as follows:without prejudice to any of the contentions of sri emberumanar jeer either before this board or elsewhere this.....
Judgment:
ORDER

Pandrang Row, J.

1. This is an application for the issue of a writ calling for the records in M.A. No. 4 of 1935 and the connected proceedings in M.A. No. 9 of 1935 with the orders passed thereon by the Board of Commissioners for Hindu Religious Endowments, Madras and to quash the order passed by the Board in M.A. No. 9 of 1935. The order in question runs as follows:

The petitioners (Appalwar Pakshiraja Iyengar and others) are entitled to 9th theertham and 9th place in the distribution of honours as claimed by them in Sri Athinathar Alwar Temple, Alwarthirunagiri, Tiruchendur Taluk, Tinnevelly District.

2. The trustee of Sri Athinathar Alwar Temple, Alwarthirunagiri, Tiruchendur Taluk, Tinnevelly District, is hereby directed to observe the order of distribution of theertham as stated above in supersession of the directions given in Board's Order No. 277 dated 12th May, 1927.

3. This order shall not in any way affect the Board's Order No. 277 dated 12th May, 1927 regarding distribution of special honours during Vaikasi festival.

2. This order was passed on review of the previous order which itself was passed on an application for reviewing the order of the Board dated 12th May, 1927. On that application for reviewing the order of 1927 three Commissioners constituting what is called a Full Board passed an order dismissing it and declining to review the order passed in 1927. Thereupon an application was made for a review of the order dismissing that application and it was on such an application for review that the present order dated 15th May, 1935, was passed and it is this order that is sought to be quashed in these proceedings. It would appear that Sri Emberumanar Jeer, the petitioner in this Court, had no objection to the 9th theertham and 9th place being given to the petitioner before the Board. The memorandum filed by him before the Board was as follows:

Without prejudice to any of the contentions of Sri Emberumanar Jeer either before this Board or elsewhere this respondent has no objection whatever to the applicants or petitioners herein being given the 9th place and theertham claimed by them and to their names being included in the list attached as an annexure to the Board's order dated 12th May, 1927, in C.A. No. 206 of 1927.

3. The order of the Board dated 12th May, 1935, purports to do nothing more as would be seen from the order which has been extracted in full above. Even in this Court the petitioner's Advocate did not object to the petitioners before the Board being given the 9th theertham and the 9th place. Apparently the objection of the petitioner is to the annexure to the order in question which purports to give the reasons for the order itself, and in particular to paragraph 9 of that annexure in which the Board held that the order for distribution of theertham and honours should be the one that was laid down in the case reported in Athan Sadagopa Chariar Swamigal v. Elayavalli Srinivasa Chariar (1913) M.W.N. 289. The Board in that paragraph directed the trustee to follow that order in supersession of the directions given in the order of 1927. This general direction regarding distribution of theertham and other honours certainly went beyond what had been agreed to by the Emberumanar Jeer (5th respondent before the Board). But as will be seen from the order itself nothing was said therein about the distribution of theertham and honours to other persons, that is to say, persons other than the petitioners before the Board whose place was fixed by consent. So far therefore as the order goes it was by consent and it is hardly open to the petitioner herein to move this Court to quash an order which was passed with his consent. This consideration however does not apply to what is contained in the annexure and to what goes beyond what was agreed to. To what extent the annexure prevails when it goes beyond the formal order itself is not a question that has been argued before me though the argument was carried on for a very long time. It has been assumed that the annexure is part of the order and must be deemed to contain directions to the trustee. I shall therefore proceed on the same assumption though it should not be taken that in my opinion the annexure is part and parcel of the order itself. The objection taken to the order or rather to the annexure is that two Commissioners had no right to review the previous order passed by three Commissioners even assuming that there was power of review and that the procedure followed by the Board of two Commissioners in granting the review and passing orders thereon without giving the parties a full hearing on the points in dispute must be deemed to have been passed without jurisdiction. It would be necessary to consider these objections to the order only if it is found that a writ of certiorari will lie in a case of this kind. It has been very strongly contended that no such writ would lie in the present case and this preliminary objection to the application must be decided before the merits can be gone into.

4. In the first place it is well settled, and there is really no dispute about it, that a writ of certiorari does not lie in respect of administrative acts. What is contended is that the present order is not an administrative act but a judicial act and that it falls within the rule laid down by Atkin, L.J., in Rex v. Electricity Commissioners (1924) 1 K.B. 171 which has been adopted and followed in Rex v. London County Council (1931) 2 K.B. 215. That rule runs more or less as follows (I am quoting from Halsbury's Laws of England, Vol. 9, p. 855):

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in the writ

5. The real question for decision in this case is whether the order of the Board including therein the annexure to it determines questions affecting the rights of subjects, and whether such determination was a judicial act. What was determined by the Board was the order of distribution of theertham and honours connected with theertham. This matter cannot in my opinion be regarded as a determination of any rights of subjects. The rights of subjects referred to in the rule are rights which can be legally enforced and not mere honours or precedence claimed or recognised as a matter of courtesy or usage. It is not seriously disputed that the right to obtain the theertham or honours in a particular order of precedence is not a civil right which can be enforced or declared in a Civil Court. The following observations in Striman Sadagopa v. Kristna Tatachariyar (1863) 1 M.H.C.R. 301 appear to me to bear on this question. That was also a case in which certain honours were claimed by the Madathipathi of a certain Mutt as against the trustees or wardens of a certain temple at Conjeevaram. Scotland, C.J., observed as follows:

The duty of individuals to submit to and perform certain religious observances in accordance with the ritual or conventional practice of their race or sect is, in the absence of express legal recognition and provision, an imperfect obligation of a moral and not a civil nature. Of such obligations the present Civil Courts cannot take cognizance.

6. Indeed the rule that Civil Courts cannot take cognizance of claims to, mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met with failure. There can be no doubt therefore that the Board dealt with a subject-matter which was not within the cognizance of the Civil Courts. I do not think the mere fact that the Board of Commissioners for Hindu Religious Endowments pronounced a decision about these honours or privileges has changed their essential nature. The distribution of theertham and other honours in temples is a matter of internal management which is left to the trustee or manager subject to such supervision as may be vested by law either in the Temple Committee or the Board of Commissioners for Hindu Religious Endowments. It is not pretended that any particular person like the petitioner could enforce a claim to get theertham or other honours in a particular order of precedence by filing a suit against the trustee or any one else. It is a matter of administration of the temple including therein the proper performance of ceremonies in the temple. Such k claim is not based on any legal right. The provisions of Section 79 of the Madras Hindu Religious Endowments Act do not in my opinion change the position. That section merely provides that nothing in the Act shall affect any established usage of a Mutt or temple or the rights, honours, emoluments and perquisites to which any person may by custom or otherwise be entitled in such Mutt or temple. The section does not enlarge such rights, honours, emoluments or perquisites, nor does it take away any of such which existed before the Act became law. In other words what was not a right has not become a right by reason of Section 79. Section 79 is merely a saving clause which does not add to or take away existing rights or remedies. It seems to me therefore that what was decided by the Board relates not to any rights of subjects but deals only with the question of order of precedence in the distribution of theertham and other honours, a subject which cannot be agitated in the ordinary Civil Courts and regarding which no one can be said to possess any legal right in the sense of a right which can be enforced with the assistance of the State. It may be that in coming to their decision the Commissioners observed certain judicial forms. The subject-matter of their decision is however not altered by the procedure observed. There is nothing incongruous in an administrative act being preceded by a judicial mode of enquiry. Instances are not wanting of even acts of Courts properly so called after hearing the parties or taking evidence being deemed to be administrative acts. It is enough to give as an instance the determination of the terms of a proclamation of sale by the executing Court which has been held to be not a judicial act but an administrative or ministerial one. What matters is not the form or procedure followed but the subject-matter of the decision. If that subject-matter includes the rights of parties and if the decision is one which is intended by law to be arrived at in a judicial manner, i.e., after hearing evidence and the parties, a writ of certiorari will certainly lie. But the mere fact that parties were heard or evidence was taken would not convert what is not a decision about rights of subjects into such a decision. The order of the Board is in my opinion nothing more than a direction to the trustee to distribute the theertham and other honours in a particular order of precedence. That is not a direction whicli determines the legal rights of any one. It cannot be said that such a decision has declared any one's legal right or deprived any one of any legal right which he had. It is merely an order dealing with the internal management of the temple and does not decide the legal rights of any subject. In this view of the case it is clear that a writ of certiorari will not lie for it is conceded that it would not lie in the case of an administrative act and it has not been contended that the Board had no jurisdiction to control the discretion of the trustee in the matter of distribution of theertham and other honours. The preliminary objection is a sound one, and the application must fail on that ground and it is not necessary to go into the question whether the procedure adopted by the Board in reviewing its previous order was wrong or whether two Commissioners were entitled to review or modify an order passed by three of them.

7. The petition is dismissed with costs of the Board (first respondent) and also costs of respondents 3 and 7, these two respondents having only one set of costs. Advocate's fee is fixed at Rs. 100.


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